European justice considers it illegal for Spain to prevent accumulating two pensions from the same regime

The Court of Justice of the European Union (CJEU) has ruled that the Spanish rule that prevents accumulating two disability pensions when only one social security scheme has been contributed is contrary to Community law if it involves indirect discrimination against female workers.

The court specifies that it is up to the Spanish judge to determine if this disadvantage actually exists and, in that case, if the rule can be justified by other objective factors and unrelated to any discrimination based on sex.

But the CJEU advances since, in its opinion, the Spanish rule could not be justified by the objective of ensuring the financial viability of the social security system, as the Government and the National Social Security Institute allege.

The court has thus ruled at the request of a Barcelona court on the case of a woman who appealed to the courts after Social Security denied her the compatibility of two total disability pensions granted in 1999 and 2018, respectively.

Spanish legislation allows two pensions of this type to be made compatible only when they have contributed to another scheme in addition to the general social security scheme, such as the special scheme for self-employed workers.

The Barcelona court that was supposed to judge the case considered that this approach led to indirect discrimination based on sex, since the proportion of men in the special regime for the self-employed is greater than that of women (which is 36.1%), with which that the compatibility of the two pensions is easier for men.

In the ruling issued today, the CJEU considers that European law in principle opposes a rule that prevents the accumulation of two total permanent disability pensions when they correspond to the same social security regime, while it allows it when they correspond to different regimes if it generates a disadvantage by allowing a significantly higher proportion of male than female workers to enjoy this accumulation.

The court leaves it up to the Barcelona judge to assess whether there is this indirect discrimination based on sex, but he warns that the data he mentioned in his preliminary question is not pertinent since not all workers affiliated to different schemes should be taken into account, but only to those who could accumulate two disability pensions.

If the rule does indeed entail a greater disadvantage for women, it would be contrary to European law unless it was justified by objective factors and unrelated to any discrimination based on sex, which would be the case if it has a legitimate social policy objective, is appropriate and necessary to achieve it and is applied consistently and systematically.

For the CJEU, the objective of ensuring sustainable financing of pensions can be considered legitimate, but, contrary to what Spain alleges, the court considers that the budgetary consequences of accumulating several disability pensions cannot be very different depending on whether they are granted under the same regime or different regimes, especially when the affected worker acquired the right to two pensions for different contribution periods.

In addition, European judges believe that the Spanish law is not applied in a systematic and consistent manner, so it would not be adequate to achieve this objective.

Now it will be the Spanish courts that have to elucidate whether there is indirect discrimination based on sex and whether there are other factors that justify it, taking into account this verdict of the European court.